Graham v. State ex rel. Monroe County

Kirby, J., (after stating the facts). There are many assignments of error in the motion for a new trial, but, under our view of the law of the case, we shall only discuss such of them as we consider necessary to its decision. It was necessary to fix the liability of the sureties of the treasurer that a settlement should be made with him by the county court as the law requires and the amount due determined and ordered to be paid by it before suit could be brought against his bondsmen for any default and the court erred in not so declaring the law. Such judgment and order, when made, is conclusive against the bondsmen as to their liability, and is a condition precedent to the bringing of the suit against them, no cause of action accruing until it was made. Jones v. State, 14 Ark. 170; Honeycutt v. Kirkpatrick, 39 Ark. 172; State v. Wood, 51 Ark. 205; Wycough v. State, 50 Ark. 105; Ireland v. State, 99 Ark. 32. There was a sufficient allegation in the amended complaint of a settlement made by the county court with the treasurer, and a failure upon his part to comply with it and pay over the money as directed, and the demurrer was properly overruled. The first order of the county court introduced shows a settlement duly made by the county court with the treasurer in June, 1910, long after the expiration of his first term of office and an adjudication'of the amount due by said treasurer at that time. The introduction of this order was properly objected to by the sureties upon the first bond, since it tended in no way to prove any liability for any breach of duty or failure to account for funds by the said treasurer during his first term and for the time which they became sureties, and the objection should have been sustained. They also objected to the introduction of the order and judgment of the county court of January 2, 1911, purporting to be a correction of said order of June, 1910, made after suit was bought, and their objection should have been sustained. It, of course, had not been made and no liability had been adjudicated against the treasurer for which his first bondsmen could be held to answer before the bringing of the suit, which, as has already been said, was a condition precedent to a suit against them. It is true that the county court had the power to correct the alleged error in the settlement made with the treasurer in June, 1910, at any time within two years thereafter, under section 7174 of Kirby’s Digest upon compliance with the provisions of that law, but even a strict compliance, if its last order was such, could not have had effect as an adjudication of the liability before suit brought. But for the introduction of these two orders and other testimony there could, of course, have been no recovery against the sureties upon the first bond. The county court having corrected its first order, and the plaintiff having recovered in the suit against the bondsmen upon the official bond for the treasurer’s second term the smaller amount adjudicated against them in said order, and no appeal having been taken therefrom, the judgment is conclusive as to their liability. Since the case must be remanded for another trial, we deem it necessary to say that the county court had the power at any time within two years after the settlement made with the treasurer to correct any error therein after the. notice as required by statute; and if its said order was properly made, it would be binding and conclusive as an adjudication against said defaulting treasurer and the sureties upon the bond for his first official term. If it shall develop that it was not so made, then the matter is still open, and the county court, there having been no settlement made with the .said treasurer at the end of his first official term, still has the power to adjust his accounts upon proper notice and determine what amount, if any, was due by him at the expiration of said term, that should have been turned over to his successor and direct the payment thereof. The sureties upon his said bond, being bound for any default upon his part and failure to account during his first term, after an adjudication of it, will continue liable to answer for such default for the term of the statute of limitations upon bonds of the kind after such adjudication is made, the time the cause of action accrues against them. For the errors indicated the case is reversed and remanded for'a new trial.